Burns v. Inch, 3:19cv394/LAC/EMT

CourtU.S. District Court — Northern District of Florida
PartiesPAUL BURNS, Petitioner, v. MARK S. INCH, Respondent.
Docket Number3:19cv394/LAC/EMT
Decision Date08 December 2020

PAUL BURNS, Petitioner,

MARK S. INCH, Respondent.

No. 3:19cv394/LAC/EMT

United States District Court, N.D. Florida, Pensacola Division

December 8, 2020



Petitioner Paul Burns (Burns) filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1). Respondent (the State) filed an answer and relevant portions of the state court record (ECF No. 24). Burns filed a reply (ECF No. 27).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful consideration of the issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Burns is entitled to federal habeas relief only as to the ineffective


assistance of appellate counsel claims asserted in Grounds Three and Seven of the § 2254 petition.


The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 24).[1] Burns was charged in the Circuit Court in and for Walton County, Florida, Case No. 2011-CF-702, with one count of sexual battery (victim less than twelve years of age) (App. A at 16). Burns retained private trial counsel (App. A at 12). On August 7, 2012, a jury found Burns guilty as charged (App. A at 92 (verdict), App. E (trial transcript)). The court sentenced Burns to a term of natural life in prison with a twenty-five year minimum mandatory and 243 days of jail credit (id. at 120-24). The court also designated Burns as a sexual predator (id. at 110-11).

The Florida First District Court of Appeal (First DCA) granted Burns a belated direct appeal (see Apps. G, H, I). Burns v. State, 128 So.3d 943, 944 (Fla. 1st DCA 2013) (Mem). In the direct appeal, Case No. 1D14-170, Burns filed a counseled initial brief (App. J). The First DCA affirmed the judgment per curiam without


written opinion on June 30, 2015 (see App. L). Burns v. State, 171 So.3d 703 (Fla. 1st DCA 2015) (Table). The mandate issued September 1, 2015 (App. O).

On February 10, 2016, Burns filed a motion to correct illegal sentence in the circuit court, pursuant to Rule 3.800 of the Florida Rules of Criminal Procedure, challenging the twenty-five-year minimum mandatory part of his sentence (App. P). The State conceded that the court should remove the minimum mandatory (App. R). On December 15, 2016, the circuit court granted Burns' motion and directed the clerk of court to correct the judgment and sentence to remove the minimum mandatory provision (App. S). An amended judgment and sentence rendered December 20, 2016 (App. T).

On February 19, 2016, Burns filed a petition for writ of habeas corpus in the First DCA, Case No. 1D16-801, alleging ineffective assistance of appellate counsel (App. U). The First DCA denied the petition on the merits on July 10, 2018, and denied Burns' motion for rehearing on August 30, 2018 (Apps. EE (opinion), FF (motion for rehearing), GG (order)). Burns v. State, 248 So.3d 1113 (Fla. 1st DCA 2018) (Table).

On October 4, 2018, Burns filed a motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure


(App. HH at 10-50). On October 30, 2018, the state circuit court summarily denied the Rule 3.850 motion (id. at 88-91). Burns appealed the decision to the First DCA, Case No. 1D19-2220 (App. II (notice of appeal), App. KK (initial brief)). The First DCA affirmed the circuit court's decision per curiam without written opinion on January 15, 2020 (App. MM). Burns v. State, 288 So.3d 1192 (Fla. 1st DCA 2020) (Table). The mandate issued February 12, 2010 (App. NN).

Burns filed the instant federal habeas action on February 5, 2019 (ECF No. 1).


A federal court “shall not” grant a habeas corpus petition on any claim that was adjudicated on the merits in state court unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).[2] Justice O'Connor described the appropriate test:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

Under the Williams framework, the federal court must first determine the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). After identifying the governing legal principle, the federal court determines whether the state court's adjudication is contrary to the clearly established Supreme Court case law. The adjudication is “contrary” only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases- indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”).

If the “contrary to” clause is not satisfied, the federal court determines whether the state court “unreasonably applied” the governing legal principle set forth in the


Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle was “objectively unreasonable” in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652 (2004). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

Section 2254(d) also allows habeas relief for a claim adjudicated on the merits in state court where that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The “unreasonable determination of the facts” standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (holding that a state court decision based on a factual determination “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.”). “The question under AEDPA is not whether a federal court believes the state court's


determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). AEDPA also requires federal courts to “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Landrigan, 550 U.S. at 473-74 (quoting 28 U.S.C. § 2254(e)(1)).

The Supreme Court has often emphasized that a state prisoner's burden under§ 2254(d) is “difficult to meet, . . . because it was meant to be.” Richter, 562 U.S.at 102. The Court elaborated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 562 U.S. at 102-03 (emphasis added).

A federal court may conduct an independent review of the merits of a petitioner's claim only if it first finds that the petitioner satisfied § 2254(d). See Panetti v. Quarterman, 551 U.S. 930, 954 (2007). Even then, the petitioner must show that he is in custody “in violation of the Constitution or laws and...

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